I represent two co-defendants in a civil case, and I've found evidence that clears one of them and pins the liability on the other. Can I keep representing both?

Plain-English summary

The inquiring attorney sought advice concerning the propriety of representing two individuals, A and B, who were co-defendants in a civil lawsuit. The attorney had discovered evidence that would tend to exculpate client B, thus shifting all potential liability to client A. The attorney described the situation to the trial justice, who believed the circumstances present a conflict of interest because the attorney represents both clients.

The panel quoted Rule 1.7, which bars representing a client whose representation will be directly adverse to another client absent reasonable belief plus consent (Rule 1.7(a)), and bars representation that may be materially limited by the lawyer's responsibilities to another client or the lawyer's own interests absent reasonable belief plus consent (Rule 1.7(b)).

The panel took the position that Rule 1.7 prevents the attorney from representing both client A and client B because their interests are so "materially adverse" that the attorney could not reasonably believe that representation of one client would not limit the attorney's ability to advance the interests of the other. The panel concluded that its position renders client A's consent to the joint representation meaningless.

Currency note

This opinion was issued in 1991, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 1.7 as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process, which renumbered and amended several provisions. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can a lawyer keep representing co-defendants after finding evidence that clears one and blames the other?

A: Under this opinion, no. The panel concluded Rule 1.7 prevents the joint representation because the co-defendants' interests became too materially adverse.

Q: Could the clients consent to keep the joint representation going?

A: The panel concluded that where the attorney cannot reasonably believe the representation of one would not limit advancing the other's interests, consent is meaningless and does not cure the conflict.

Q: What made the conflict unwaivable here?

A: The panel treated the interests as so materially adverse (one co-defendant's exculpation shifting all liability to the other) that no reasonable belief in non-limitation was possible.

Background and rules framework

The opinion applies Rule 1.7 (Conflict of Interest: General Rule), corresponding to Model Rule 1.7. The panel quoted both the direct-adversity provision (Rule 1.7(a)) and the material-limitation provision (Rule 1.7(b)), and concluded that the discovered exculpatory evidence made the co-defendants' interests so materially adverse that the reasonable-belief predicate for consent could not be satisfied, so the conflict could not be waived.

Citations and references

Rules of Professional Conduct:

• MR 1.7 (conflict of interest: current clients)
• RI RPC 1.7

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• RI EAP Op. 95-54: Divorce Clients Who Are Dating
• RI EAP Op. 95-17: Representing a Corporation and Stockholder in a Buyout
• RI EAP Op. 95-56: An Agency Lawyer Adverse to the State

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2091-23.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

Digest of Ethics Advisory Panel
Opinion #91-23, Request #122
Issued May 23, 1991

An attorney seeks Panel advice concerning the propriety of representing two individuals, A and B, who are co-defendants in a civil lawsuit. The attorney states that he/she has discovered evidence which would tend to exculpate client B, thus shifting all potential liability to client A. The attorney described this situation to the trial justice who believes these circumstances present a conflict of interest because the attorney represents both clients.

The applicable Rhode Island Rule of Professional Conduct is Rule 1.7, which provides in pertinent part:

(a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless:

(1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and

(2) each client consents after consultation.

(b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interests, unless:

(1) the lawyer reasonably believes the representation will not be adversely affected; and

(2) the client consents after consultation. When representation of multiple clients in a single matter is undertaken, the consultation shall include explanation of the implications of the common representation and the advantages and risks involved.

The Panel takes the position that Rule 1.7 prevents the attorney from representing both client A and client B because their interests are so "materially adverse" that the attorney could not reasonably believe that representation of one client would not limit the attorney's ability to advance the interests of the other. The Panel believes its position renders client A's consent to the joint representation meaningless.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.